Ar dtús ba mhaith liom mo bhuíochas a chur in iúl do na Teachtaí a ghlac páirt san díospóireacht seo.
I would like to thank the Deputies who contributed to this debate for their constructive and at times robust contributions. In general, the subject we are discussing is emotive and raises all sorts of technical questions. It is also a delicate subject. In particular, this Bill is complex in places and it does have a narrow focus. In short, it is a difficult subject to talk about.
The underlying purpose of the Bill is to strike a balance between protecting the fundamental public interest involved in the security of the State and the effective investigation of serious offences on the one hand, and safeguarding the right of individuals to privacy of communication on the other hand. Some degree of official interception of telephone communications is a feature of law enforcement internationally and it is accepted that to be effective any system of official interception must be accompanied by the greatest degree of secrecy that can be achieved compatible with the interests of justice.
With a view to achieving a proper balance between the public and private interests the Bill provides for clear but limited circumstances in which authorisations may be given. It provides a procedure under which a complaints referee, who will have full access to all relevant papers and information, can investigate complaints and award compensation for improper authorisations. Most importantly, it provides for continuous supervision of the operation of the system by a judge of the High Court, who will also have complete access to all relevant papers and information. Under the Bill, any authorisation given will be given in the knowledge that that authorisation can come under the scrutiny of an independent judicial authority of high standing. This is the surest guarantee that authorisations given under the Act will be proper authorisations.
The Bill proceeds on the basis that nobody has a right to know whether their telephone has been lawfully tapped, whereas everybody has a right to know that there has or has not been a contravention of the Act in relation to them.
Before dealing with specific points raised by Deputies I feel I must comment in a general way on some criticisms of the Bill. This Bill evolved from the 1985 Bill and the 1990 Private Members' Bill. It is very similar to those Bills and any changes that have been made are by way of bringing this Bill up to date. These changes have been made in the context of what this Bill sets out to do, that is, placing on a statutory basis the power of the Minister for Justice to authorise interceptions of postal packets and telecommunications and introducing two new provisions for controlling the exercise of the Minister's powers in that respect. None of the criticisms are of those changes and, indeed, it is gratifying that the provisions in the Bill have generally been received very well.
Deputies have criticised the Bill for what it does no contain. Those matters which I will deal with in detail in a moment were not in the 1985 or the 1990 Bills either, and for good reason. They are not relevant to this Bill and they are not matters that are the responsibility of the Minister for Justice. It is not as if illegal interception of communications was not an issue some years ago or that equipment for receiving electric or magnetic signals was not heard of. They were not relevant to the 1985 Bill, the 1990 Bill or to this Bill.
I will now deal with some specific points raised by Deputies and I will start with the question of unauthorised interceptions and scanners, as raised by Deputies Kemmy, Gilmore and Durkan. I have already explained the very precise intent of this Bill. It deals with authorised interceptions of postal packets and telecommunications messages. It does not deal with unlawful interception of postal packets or telecommunications messages. Any such interceptions would, as I suggested, be breaches of the criminal law and would be investigated by the Garda and where appropriate, dealt with by the courts.
The offence of opening or tampering with postal packets is at section 84 of the Postal and Telecommunications Services Act, 1983. The offence of intercepting telecommunications messages is at section 98 of the 1983 Act. In the case of postal packets it is also an offence to disclose the extent or contents of the packet or to use for any purpose any information obtained from such a packet. In a case of telecommunications messages it is also an offence to disclose the existence, the substance or purport of any such message allegedly intercepted.
The penalty for an offence under either section 84 or 98 of the 1983 Act is, on conviction on indictment, a fine of up to £50,000 or up to five years imprisonment or both.
I would hope that Deputies would agree that the law governing illegal interception of telecommunications messages is adequate to control any abuses of the telecommunications network in that respect. It would seem that the appropriate way of dealing with illegal interceptions of phones or postal packets is to criminalise the publications of any information obtained by that method or even disclosing the existence of such information. The 1983 Act deals with those points adequately. Before leaving section 98 of the 1983 Act I would like to mention that it also gives the Minister for Tourism, Transport and Communications power to make regulations prohibiting the provision or operation of overhearing facilities in relation to any apparatus, including private branch telephone exchanges, connected to the Bord Telecom network.
I turn now to interception by other means — for example, devices attached to walls, or as they are called, bugging devices. Such devices that are used to monitor conversations are outside the scope of the Bill. Under no stretch of the imagination could they be classified as devices that intercept postal packets or telecommunications. Even if within the scope of this Bill, the Minister could not undertake to deal with them in this Bill because to do so would delay it further to an unacceptable extent. It is a major and complex question that would require much consideration. Indeed, if it is ever decided to attempt to tackle the subject legislatively, it would warrant a Bill of its own.
If a device for eavesdropping on conversations was to fall within the definition of "apparatus for wireless telegraphy", which I will deal with in another context in a moment, it would of course be an offence to have or to keep it without a licence. Even if not covered by legislation — and because of the variety and type of devices potentially available and the complexity of the technology involved I do not intend to make any general comment on that — the circumstances in which bugging devices are used could involve a criminal act, for example, trespass or blackmail. The constitutional right to privacy with regard to telephone conversations has been dealt with in the Kennedy/Arnold case and it could well be that what the court held in that case could be extrapolated to include intrusions into privacy by other means.
Finally on this point, there is the question of intercepting cellular phones by way of what are called "scanners". I referred a moment ago to the meaning of the expression "apparatus for wireless telegraphy". Its meaning is inserted into the Wireless Telegraphy Act, 1926, by the Broadcasting and Wireless Telegraphy Act, 1988. It is a rather long and technical definition but the most salient feature of it is that it means an apparatus, capable of emitting and receiving, or emitting only or receiving only over paths which are not provided by any material substance, electric, magnetic or electromagnetic energy or communications, sounds, signs, visual images or signals. It is an offence to keep or have in one's possession any such apparatus without a licence and the penalty on indictment is a fine of up to £20,000. Any scanner that receives such signals, etc., which probably means all scanners, would fall within the definition of "apparatus for wireless telegraphy".
That definition is very wide and includes, for example, such household goods as television sets, although the penalty for having an unlicensed television is considerably less than £20,000. It would not be a function of this Bill to attempt to amend the definition of "apparatus for wireless telegraphy", but even if it was it would hardly be a practical proposition given the complexity and ever changing nature of the technology involved. I would maintain that control of such equipment by means of licensing, as at present, is more realistic, with substantial fines for keeping it or having it in one's possession without a licence or for using it contrary to the terms or conditions of the licence.
In this context Deputies, in particular Deputy Kemmy, also referred to the recent incident concerning Deputy Bruton's car phone. The Bill has been re-examined in the light of the recent controversy, and in the context of what the Bill set out to achieve it would appear no changes are necessary. There is a crucial difference between the purpose of the Bill and the alleged incidents surrounding Deputy Bruton's car phone. As I already explained, the Bill places on a statutory basis the conditions under which the existing power of the Minister for Justice to issue warrants authorising the interception of postal packets and telecommunications messages is to be exercised and it regulates the procedure for the issue of authorisations. In other words, it is concerned only with authorised interceptions. The alleged interceptions of Deputy Bruton's car phone was not authorised and therefore has no direct implications for this Bill.
I do not want to say any more about that incident as it is now the subject of a criminal investigation. However, I am satisfied that no issue has been raised that is directly relevant to this Bill. The issues are relevant, as I have already explained, to the Postal and Telecommunications Services Act, 1983, and other Department of Tourism, and of Communications legislation that deals with apparatus for wireless telegraphy. If that Department are in any way concerned that arising from recent events legislation for which they are responsible needs to be amended, the Minister would consider using this Bill as a vehicle for any such amendments if technically and procedurally feasible. However, no representations have been made to the Minister for such changes and as far as he is aware the Department of Tourism, Transport and Communications have no proposal at present to amend the 1983 Act or the Wireless Telegraphy Acts in connection with interception of communications.
Deputy Kemmy thought it would be preferable for a judge to authorise interceptions rather than the Minister for Justice. The task of deciding whether a communication should be intercepted in particular circumstances or whether the security of the State is endangered is essentially an executive function and has been regarded as such by every Government since the foundation of the State. The Minister will have the advice and recommendation of a nominated officer of his Department to assist him in making such a decision. A judge would not have this assistance. It would be undesirable to involve the Judiciary directly in secret operations relating to the investigation of crime or the security of the State. The more logical and reasonable approach is to have the authorisation issued by a member of the Executive and to have the oversight of the system carried out by a member of the Judiciary. There are other pragmatic arguments against giving a judge power to authorise interceptions, but as I am basing my argument on principle I need not go into those here.
Deputies Kemmy and Gilmore suggested that the reports of the designated judge should be presented to the Dáil. The position is that under section 8 (7) of the Bill the Taoiseach will in any case cause a copy of any report from the designated judge to be laid before each House of the Oireachtas. If the Taoiseach considers after consultation with the judge that the publication of any matter in a report would be prejudicial to the prevention or detection of crime or to the security of the State, he can exclude such matters and append a statement to that effect to the report. In other words, if such matter were left in the report it would be prejudicial to the prevention or detection of crime or to the security of the State. If the judge reported direct to the Dáil he might feel inhibited in what he included in his report. I am sure that Deputies, like me, will await with interest the reports of the designated judge. Deputy Gilmore wanted the report to include statistical information such as the number of authorisations granted. It will be up to the judge to decide on how much statistical detail will be included in his reports.
Deputy Gilmore was concerned about the expression "security of the State" He thought it too vague a criterion to justify interception. The expression "security of the State" is not capable of precise definition as the circumstances in which State security may be endangered are infinitely varied. It is one of those expressions that everyone knows what it means but if asked to define it in a few words would be unable to do so. Any words or phrases that might be used in a definition would themselves require definition — for example, "subversion", "terrorism", "espionage". It is also relevant to note that Article 8 of the Human Rights Convention uses the expression "national security" but does not define it.
It will be a matter for the Minister to make a judgment, in the light of all the circumstances known to him and on the basis of the information supplied with an application for an authorisation on grounds of State security, whether the security of the State is in fact endangered. Section 5 sets out quite clearly the conditions that must be fulfilled before the Minister can issue an authorisation for interception in the interests of the security of the State. Under section 5 (a) he must be satisfied that there are reasonable grounds for believing that particular activities are being carried on or proposed to be carried on that are endangering or likely to endanger the security of the state.
Thus, the criterion of security of the State is strictly limited by the conditions in section 5 which may be regarded as indirectly defining or circumscribing the expression. Moreover, the question whether or not the security of the State was endangered and whether an application or authorisation on these grounds was justified will be open to review by the High Court judge designated under section 8. Furthermore, the views of the judge as to the way in which the criterion was being applied would no doubt form part of his reports to the Taoiseach, who is required to place such reports before the Houses of the Oireachtas. It is reasonable to say therefore that, while the expression "security of the State" is not formally defined, there are sufficient safeguards in the Bill to prevent any extreme or irrational interpretations of it.
Deputy Gilmore wanted assurances that there would be no abuses of the legislation. The safeguards built into the scheme of authorised interceptions will ensure that no abuses can arise. He also wanted the legislation to cover private individuals. In so far as he is referring to illegal interceptions, I have already explained the existing law in that respect.
Deputy Gilmore was also concerned about giving the Defence Forces power to request a warrant for an interception. There is a distinction between the role of the Army and the Garda in ensuring the security of the State. Generally in this area one senior Army officer is responsible for security matters in the Defence Forces and it is appropriate that he should be able to originate a request for a warrant if it is concerned with State security. Any such request must be accompanied by a recommendation in writing from the Minister for Defence supporting the application.
Deputy Callely referred to equipment that unintentionally picked up other people's communications. I think the existence of such equipment and other equipment with perfectly legitimate uses highlights the difficulties that would be faced by anyone trying to ban the sale of this type of modern equipment all the time coming on to the market.
Deputy Durkan wanted to know why the definition of "interception" does not include listening or recording where one of the parties concerned in the conversation has consented to the listening or recording. There are many examples of when a person might want his or her phone calls intercepted — for example, if he or she were being blackmailed or in a kidnapping.
Deputy Shatter in his brief contribution referred to the urgent need for this legislation and the necessity for the Bill to proceed to Committee Stage. I have no doubt but that the Whips will deal with this matter in due course. The Deputy said that the legislation should be enacted before a general election. I can assure the Deputy that that time limit would give the Government almost 18 months, because I doubt very much that there will be a general election within the next 18 months.
